Citation Nr: 18156091 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-01 260 DATE: December 6, 2018 ORDER Entitlement to service connection for right knee disability is denied. REMANDED Entitlement to service connection for diabetes mellitus is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a right knee disability due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for right knee disability are not met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1987 to October 1987 and from October 1988 to November 1996. The Veteran also had a period of service from November 27, 1996 to August 27, 2003 for which he received a bad conduct discharge. This last period of service is dishonorable service for VA purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. This matter was previously remanded in December 2016. Legal Criteria A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167(Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Analysis The Veteran contends that he is entitled to service connection for his right knee disability. The Veteran believes that his right knee injury is attributable to his time in service and his frequent jumping on and off trucks, walking through sand and running daily while in the military. He also alleges that he went to sick call for his right knee many times while in the military. See July 2016 Hearing Testimony. The record establishes that the Veteran has a current right knee disability. See June 2018 CAPRI at 24. Moreover, service treatment records note that the Veteran reported knee pain several times during service. See May 2004 STR-Medical. Nonetheless, the record does not establish a nexus or causal relationship between the Veteran’s current disability and in-service injury. The Veteran’s entrance exam was normal, with no noted abnormalities. See STR-Medical at 120-123. Service treatment records show the Veteran reported a right knee injury in February 1994 and March 1994. See May 2004 STR-Medical at 76, 138. The Veteran reported some lower extremity numbness in March 1995. See May 2004 STR-Medical at 95. As a result of his complaints of knee pain, the Veteran was restricted to no running for six weeks. He remained able to swim, bike, walk and stretch. See December 2006 Medical Treatment Record at 9. However, a February 1998 physical profile (during his dishonorable period of service) noted that the Veteran remained able to perform a straight leg raise, walk at own pace and distance, run at own pace and distance, bicycle at own pace and distance, swim at own pace and distance, and walk or run in the pool at own pace and distance. Moreover, the Veteran remained able to march up to one mile and lift up to 45 pounds. See May 2004 STR-Medical at 16. The record contains no subsequent complaints of right knee pain in service. Post military service, treatment records show that the Veteran did not complain of knee pain until 2006. Notably, during a March 2005 VA examination, the Veteran retained full range of motion of the right knee with no complaints of pain. See March 2005 VA Examination at 3. Following complaints of knee pain, March 2006 imaging notes no bone, joint or soft tissue abnormalities of the bilateral knees. See April 2006 Medical Treatment Record at 11. While April 2006 treatment records note that the Veteran has arthritis in his knees there is no diagnostic imaging to support this finding. See April 2006 Medical Treatment Record at 3. May 2007 treatment records note the Veteran as having a one-year history of right knee pain, with symptoms of throbbing at night and occasional clicking and popping and no history of trauma. See August 2007 Medical Treatment Record-Government Facility at 16. The Veteran underwent right knee arthroscopy in June 2007. See July 2013 CAPRI at 205. Post surgery, treatment records continue to note ongoing symptoms of pain. See June 2018 CAPRI at 1. The Veteran has also required use of assistive devices such as a cane and knee brace. See August 2007 Medical Treatment Record- Government Facility at 1. See also October 2017 CAPRI at 269 Notwithstanding this evidence of a current, ongoing right knee disability the record does not show, and no examiner has opined, that the Veteran’s right knee disability is etiologically related to his service. The Veteran was provided with a VA examination in August 2012. The Veteran reported injuring his right knee in the early 1990’s during PT while playing football. He further contended that since that time, his knee conditioned to worsen, eventually requiring arthroscopic meniscus repair in 2007. See July 2013 CAPRI at 9. The examiner noted that the Veteran’s x-ray did not support a diagnosis of degenerative or traumatic arthritis. See July 2013 CAPRI at 18. The examiner opined that the Veteran’s right knee condition was less likely than not incurred in or caused by his military service. The examiner’s opinion was based on the service treatment records showing no evidence of significant injury nor chronic complaints of right knee pain while in-service, and evidence showing the Veteran’s right arthroscopic knee surgery occurred in 2007, years after his military service. See July 2013 CAPRI at 19. Significant weight is afforded to this opinion as it is consistent with and supported by the medical evidence of record which shows that the Veteran reported some knee pain in service, in 1994, and upon discharge did not report right knee pain again until 2006. It is further supported by May 2007 treatment records specifically noting that the Veteran’s right knee pain had an onset of approximately one year and the evidence showing that the Veteran did not require arthroscopic surgery until 2007. The Veteran was afforded another VA Examination in February 2018. See February 2018 C&P Exam. Following an examination and review of the evidence of record, the examiner opined that the Veteran’s right knee disability is less likely than not caused by the Veteran’s right knee injury during service. The examiner’s rationale was that the service treatment records contain a subjective report of knee pain for nearly a year, without objective evidence to support it and the service treatment records remain silent over the next two years which supports a minor and self-limiting injury. Weight is afforded to this opinion as it is consistent with and supported by the evidence of record showing complaints of knee pain for approximately one year in service, and no complaints of knee pain post military discharge until 2006. The record contains lay statements from the Veteran in which he alleges that his right knee pain began in service following a football injury and has grown progressively worse over time. See June 2018 CAPRI at 1. Although the Veteran alleges his knee pain worsened over time, the record does not contain consistent complaints of knee pain until 2006, years after the Veteran’s military service. The Board finds it significant that when evaluated during the March 2005 VA examination, he specifically complained about a number of musculoskeletal issues, to include his left knee but not his right. There were no findings pertaining to the right knee either. The Board concludes that it is reasonable to assume that if the Veteran had right knee pain since his service, such would have been reported during this VA examination. Accordingly, the probative value of the Veteran’s lay statements regarding complaints of pain since service is outweighed by the lack of right knee complaints and findings in the contemporaneous medical evidence of record. See Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date). Overall, based on the evidence of record showing no causal connection between a right knee disability and his military service, the Veteran is not entitled to service connection for his right knee disability. REASONS FOR REMAND This matter was previously remanded by the Board in December 2016. See December 2016 Remand BVA. A remand by the Board imposes a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). For the reasons discussed below, the Board finds that the remand directives were not complied with. Therefore, this claim must be remanded for compliance with the remand directives. With respect to the Veteran’s diabetes, remand directives included a request that the examiner opine whether it is at least as likely as not that the Veteran’s diabetes mellitus is caused or aggravated by one of his service-connected disabilities. Further, if the examiner found that the disability was aggravated by a service-connected disability the examiner was directed to identify the baseline level of the disability that existed before aggravation by the service-connected disability. In a February 2018 examination the examiner was specifically asked if it is at least as likely as not that the Veteran’s diabetes mellitus is caused or aggravated by one of his service-connected disabilities or the medication for treatment of a service-connected disabilities. See February 2018 C&P exam at 3. The examiner responded that the Veteran’s diabetes is less likely than not proximately due to or the result of service-connected conditions. The examiner did not address whether the Veteran’s diabetes was aggravated by a service-connected disability. The examiner was also specifically asked whether the Veteran’s service-connected disabilities are causally related to the Veteran’s unhealthy lifestyle and weight gain which have been attributed to his development of diabetes mellitus. See February 2018 C&P Exam at 4. In response, the examiner stated that while weight is a risk factor for diabetes mellitus it is much more complicated than that. Genetics play a role as well. The Veteran’s diabetes mellitus is due to multiple factors and assign [sic] a degree of certainty to any of those factors would be speculative. See February 2018 C&P Exam at 4. The Board notes that treatment records have characterized the Veteran as obese. Further, the Veteran has testified his current diabetes mellitus disability is secondary to his service-connected disabilities as they have caused him to engage in an unhealthy lifestyle which has resulted in weight gain and a diagnosis of diabetes mellitus. See July 2016 Hearing Testimony at 20. An examiner’s opinion should be supported by adequate rationale, and information. Accordingly, the examiner should indicate what factors the Veteran’s diabetes are a result of and weather the Veteran’s unhealthy lifestyle and weight gain are amongst the factors that resulted in the Veteran’s diabetes. The matters are REMANDED for the following action: 1. Obtain an addendum to the February 2018 VA opinion for the Veteran’s diabetes mellitus. In answering the following questions, the examiner is advised that the Veteran is service connected for PTSD, low back disability, IBS, tension headaches, cervical spine disorder, arthritis of the left navicular cuneiform joint, left wrist disability, hypertension, radiculopathy of the bilateral lower extremities, bilateral pes planus, erectile dysfunction, and a right shoulder disability. (a) The examiner should state whether it is at least as likely as not that the Veteran’s diabetes mellitus was aggravated (worsened beyond its normal progression) by one or more of the Veteran’s service-connected disabilities. (b) Opine as to whether it is at least as likely as not (50% or better probability) that a service-connected disability(ies) caused the Veteran to become obese, to include as due to any lack of exercise resulting from the service-connected disability(ies). (c) Opine as to whether it is at least as likely as not (50% or better probability) that the obesity was a substantial factor in causing the Veteran’s diabetes mellitus. (d) Opine as to whether it is at least as likely as not (50% or better probability) that the Veteran would not have diabetes mellitus if he were not obese. (Continued on the next page)   The examiner should explain why or why not for each question asked. Clear rationales for the opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Wimbish, Associate Counsel